Arrogation Of Unlimited Contempt Power By The Supreme Court- A Hornets' Nest Stirred Up Again

Prior to the codification of the law of contempt of court in India the contempt jurisdiction was exercised the High Court by virtue of it being a superior court of record having an inherent contempt jurisdiction. The Supreme Court of India came into existence only under the Constitution of India. The Federal Court was not a very old institution as it was brought into existence by the GOI Act, 1935 from year 1937. The Federal Court functioned until it was replaced by the Supreme Court of India. Thus, exercise of inherent contempt jurisdiction by the Supreme Court has no sufficiently long historical sanction unlike the High Courts established during the British rule.

Originally in the past the contempt power was wholly unregulated and considered arbitrary. What constituted contempt of court, what procedure to be followed and what punishment to be imposed was left to the judgment of an individual judge trying the contempt. The jurisdiction was so arbitrary that until recent times no appeal lay against the judgment given in exercise of contempt jurisdiction. It was for this reason Parliament had to intervene in relation to contempt jurisdiction by providing the maximum punishment for contempt of court and providing a fair procedure for the summary trial for contempt of court with a right to appeal.

In India also the Parliament intervened by enacting the Contempt of Courts Act, 1952 initially which was almost reproduction of The 1926 Act and having found it inadequate to meet the needs of the time, it enacted The Contempt of Courts Act,1971 to see that the power of contempt stands the test of it being non-arbitrary, fair, just, reasonable and constitutional. The Contempt of Courts Act, 1971 is based on the recommendations made by the Sanyal Committee and the Joint Select Committee. The Contempt of Courts Act, 1971 touches broadly the following aspects of the contempt jurisdiction. It defines what is contempt of court. It prescribes the procedure to be followed for initiating and conducting contempt proceeding. It prescribes the maximum punishment of imprisonment and fine that can be imposed. It provides for the period of limitation for initiating contempt proceeding. It provides for appeal against an order passed in exercise of the contempt powers. Now it even provides that the "truth" can be pleaded as defense in contempt proceeding.

Relevant extract from the report of the Sanyal Committee:

In India the power to punish for contempt of court has been recognized to be there in all High Courts and the Supreme Court specifically in the Constitution of India itself. Therefore, no ordinary law made by Parliament can take away this power. Perhaps, by amending the Constitution only the power of contempt can be abrogated. The Sanyal Committee (Chapter III) examined the issue regarding the power of Parliament in respect of making a law on contempt of court in light of the provisions contained in the Constitution of India. The observations of the Committee are as under:

"The question which arises out of various constitutional provisions is as to how far the legislature is competent to deal with the subject of contempt of courts and as to what are the limitation of the legislature in this matter. The question is of fundamental importance as there are some data indicating that in view of the constitutional provisions the legislature is not competent to define contempt in so far as the superior courts are concerned…In State v. Padmakant MalaviyaAIR 1954 All 523, Desai J observed that contempt was not defined in the Contempt of Courts Act, 1926 not because it was difficult, or not necessary to define it but because the legislature had no power to define it, a court of record having exclusive power to define and determine what amounts to contempt. The doubt in regard to legislative competency seem to have arisen mainly by reason of the fact that the Constitution has by Article 129 and 215 expressly declared the Supreme Court and the High Courts to be courts of record possessing all the powers of such courts including the power to punish the contempt of themselves, while at the same time, enumerating without any qualifications contempt of the Supreme Court in Entry 77 of List I and contempt of courts other than the Supreme Court in Entry 14 of List III of the Seventh Schedule."

After taking note of the Constituent Assembly Debates the Sanyal Committee recorded:

"..the elaborate phraseology of Articles 129 and 215 would reveal itself more as the consequence of a practical difficulty in using more concise and less misleading language to describe the powers of the courts rather than as an attempt to freeze for all time to come the substantive law of contempt. The wide and unqualified language of Entry 77 of List I and Entry 14 of List III of the seventh schedule shows that the legislature has full power to legislate with respect to contempt of court subject only to the qualification that the legislature cannot take away the power of the Supreme Court or the High Court to punish for contempt or vest that power in some other court, for example, a magistrate's court. Further the provisions of the Article 142(2) to the effect that the Supreme Court shall have all and every power to make any order for the investigation or punishment of any contempt of itself, subject to the provisions of any law made in this behalf by Parliament. 'Subject to the provisions of any law made in this behalf by Parliament' clearly assumes that Parliament has full power to legislate in relation to contempt of the Supreme Court. In other words, even if Article 129 were interpreted as conferring on the Supreme Court the power to punish for contempt of itself, another Article, namely Article 142(2) expressly makes 'all and every power' of the court to make any order for punishment of any such contempt subject to any law made in this behalf by Parliament. Further legislation in relation to contempt, as contemplated and saved by Article 19(2), must necessarily be in relation to substantive law of contempt and such legislation would not be possible in relation to the Supreme Court and High Courts if Articles 129 and 215 were construed to prohibit it. It would therefore, seem to us to be sufficiently clear that having regard to the relevant provisions, Parliament has power to legislate in relation to the substantive law of contempt of the Supreme Court and High Court. In this conclusion, we are fortified by the provisions of the Contempt of Courts Act, 1952, which expanded the ambit of the authority of these superior courts and at the same time limited punishment which may be awarded by courts in contempt cases. Those provisions doubtless pertain to substantive aspect of the contempt law and were noticed by the Supreme Court in Sukhdev Singh's case without any doubt being cast about their constitutional validity."

Finally, the Sanyal Committee concluded:

"Having come to the conclusion that Parliament is competent to legislate in relation to contempt, the next question that arises is as to the limitations, if any, to which this power of Parliament is subject. The paramount limitation, in our opinion, is that the power of the Supreme Court and the High Court to punish for contempt having been recognized in express words, by the Articles of the Constitution, it cannot be abrogated, nullified, or transferred to some other body, save by an amendment of the Constitution. .... Our conclusion, therefore, is that Parliament is competent to legislate in relation to the law of contempt subject to only three limitations.... and there is no basis for the theory that a court of record has the sole and exclusive power to define and determine what amounts to contempt of its authority."

Parliament's competence not doubted:

In S.K. Sarkar Versus Vinay Chandra Mishra AIR 1981 SC 723 the Supreme Court said:

"Articles 129 and 215 preserve all the powers of the Supreme Court and the High Court, respectively, as a Court of Record which include the power to punish the contempt of itself. There are no curbs on the power of the High Court to punish for contempt of itself except those contained in the Contempt of Courts Act. Articles 129 and 215 do not define as to what constitutes contempt of Court. Parliament has, by virtue of the Entries 77 and 14 in List I and List III respectively of the Seventh Schedule, power to define and limit the powers of the Courts in punishing contempt of Court and to regulate their procedure in relation thereto. Indeed, this is what is stated in the preamble of the Act of 1971."

Here also the court did not doubt the legislative competence of Parliament to enact law in respect of contempt of court. On the contrary it was said that Parliament has, by virtue of the Entries 77 and 14 in List I and List III respectively of the Seventh Schedule and Article 142 of the Constitution, power to define and limit the powers of the Courts in punishing contempt of Court and to regulate their procedure in relation thereto.

In Delhi Judicial service Association's case AIR 1991 SC 2176 slightly different observations were made in the background of a particular contention raised by the alleged contemnor. The court stated:

"The power of the Supreme Court and the High Court being the Courts of Record as embodied under Articles 129 and 215 respectively cannot be restricted and trammeled by any ordinary legislation including the provisions of the Contempt of Courts Act. Their inherent power is elastic, unfettered and not subjected to any limit. The power conferred upon the Supreme Court and the High Court, being Courts of Record…and therefore the constitutionally vested right cannot be either abridged by any legislation or abrogated or cut down. The caution that has to be observed in exercising this inherent power by summary procedure is that the power should be used sparingly, that the procedure to be followed should be fair and that the contemnor should be made aware of the charge against him and given a reasonable opportunity to defend himself...Entry 77 of List I, Schedule 7 read with Article 246 confers power on the Parliament to enact law with respect to the Constitution, organization, jurisdiction and powers of the Supreme Court including the contempt of the Supreme Court. The Parliament is thus competent to enact a law relating to the powers of Supreme Court with regard to 'contempt of itself' such a law may prescribe procedure to be followed and it may also prescribe the maximum punishment which could be awarded and it may provide for appeal and for other matters. But the Central Legislature has no legislative competence to abridge or extinguish the jurisdiction or power conferred on the Supreme Court under Article 129 of the Constitution. The Parliament's power to legislate in relation to law of contempt relating to Supreme Court is limited, therefore, the contempt of Courts Act does not impinge upon the Supreme Court's power with regard to the contempt of sub-ordinate Courts under Article 129. There is no provision in Contempt of Courts Act 1971 curtailing the Supreme Court's power with regard to contempt of subordinate Courts, Section 15 on the other hand expressly refers to the Supreme Court's power for taking action for contempt of subordinate Courts."

It must be remembered that Delhi Judicial Service Association was a case where the core issue was whether the Supreme Court can directly take cognizance of contempt of any subordinate court and whether The Contempt of Courts Act, 1971 makes any provision permitting the Supreme Court to take cognizance of contempt of any subordinate court directly. The Supreme Court did not find any restriction in the 1971 Act which prevented it taking suo motu cognizance of a contempt of any subordinate court. Thus, in the background of some ambiguity in relation to the power of taking cognizance of contempt of subordinate court by the Supreme Court it took recourse of its inherent powers under Article 129.

The Supreme Court once again clarified the position of Parliament as regard its power to enact law relating to contempt in Pritampal v. High Court of M.P. AIR 1992 SC 904. The Court held:

"The nature of Entry 77 of List I and Entry 14 of List III of the Seventh Schedule to the Constitution demonstrates that the legislative power of Parliament and/or the State legislature extends to legislating with respect to the matter connected with contempt of the Supreme Court or the High Court, subject to however, to the qualification that such legislation cannot denude, abrogate or nullify the power of the Supreme Court to punish for contempt under Article 129 or vest that power in some other court."

Similarly, in Dr.L.P. Mishra v. State of UP AIR 1998 SC 3337 the Supreme Court said that inherent jurisdiction has to be exercised in accordance with the procedure prescribed by law.

In Supreme Court Bar Assn. v. Union of India AIR 1998 SC 1895 the Supreme Court expressed no final opinion on the question whether Parliament can limit or regulate contempt power of the Supreme Court since that issue strictly speaking did not arise for decision in that case. The question regarding the restriction or limitation on the extent of punishment, which the Supreme Court may award while exercising its contempt jurisdiction, it was observed, may be decided in a proper case, when so raised.

Discordant notes struck:

In T Sudhakar Prasad v. Govt. of AP (2001) 1 SCC 516 dated 13/12/2000 (refer to also I. Manilal Singh v. Dr. H. Borobabu Singh AIR 1994 SC 505) the following view was expressed by the Supreme Court. The court held:

"These articles do not confer any new jurisdiction or status on the Supreme Court and the High Courts. They merely recognize a pre-existing situation that the Supreme Court and the High Courts are Courts of record and by virtue of being Courts of record have inherent jurisdiction to punish for contempt of themselves. Such inherent power to punish for contempt is summary. It is not governed or limited by any rules of procedure excepting the principles of natural justice. The jurisdiction contemplated by Articles 129 and 215 is inalienable. It cannot be taken away or whittled down by any legislative enactment subordinate to Constitution. The provisions of Contempt of Courts Act, 1971 are in addition to and not in derogation of Articles 129 and 215 of the Constitution. The provisions of the Contempt of Courts Act, 1971 cannot be used for limiting or regulating the exercise of jurisdiction contemplated by the said two articles".

The aforesaid decision in T. Sudhakar Prasad and Manilal Singh's cases do not lays down the law correctly and they have no value as precedents.

Controversy conclusively settled:

In fact, in the later decision in Pallav Sheth v. Custodian AIR 2001 SC 2763 dated 10/08/2001 the court directly and exhaustively examined the issue whether the law prescribing period of limitation for initiation of contempt proceeding could be said to abrogate constitutional power under Articles 129 and 215. Pallav Sheth's decision is the case where the question left open vide SC Bar Association's case (AIR 1998 SC 1895) was conclusively decided. The court held:

"There can be no doubt that the Supreme Court and High Courts are Courts of Record and the Constitution has given them the powers to punish for contempt. This power cannot be abrogated or stultified. But if the power under Article 129 and Article 215 is absolute can there be any legislation indicating the manner and to the extent that the power can be exercised? If there is any provision of the law which stultifies or abrogates the power under Article 129 and/or Article 215 there can be little doubt that such law would not be regarded as having been validly enacted. However, a law providing for the quantum of punishment or what may or may not be regarded as acts of contempt or even providing for a period of limitation for initiating proceedings for contempt cannot be taken to be a provision which abrogates or stultifies the contempt jurisdiction under Article 129 or Article 215 of the Constitution. Courts have always frowned upon the grant or existence of absolute or unbridled power. Just as power or jurisdiction under Article 226 has to be exercised in accordance with law, if any, enacted, by the legislature it would stand to reason that the power under Article 129 and/or Article 215 should be exercised in consonance with the provisions of a validly enacted law. In case of apparent or likelihood of conflict the provisions should be construed harmoniously. It, therefore, follows that if Section 20 is so interpreted that it does not stultify the powers under Article 129 or Article 215 then, like other provisions of the Contempt of Courts Act relating to the extent of punishment which can be imposed a reasonable period of limitation can also be provided."

Resurrection of the controversy:

Despite the above stated clear enunciation of law, strangely the Supreme Court inflicted punishment on the contemnor de hors the provisions of the Act in Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374 and while doing so it relied upon its inherent and constitutional jurisdiction under Article 129.

The court said:

"Parliament by virtue of Entry 77 List I is competent to enact law relating to the powers of the Supreme Court with regard to contempt of itself and such a law may prescribe the nature of punishment which may be imposed on a contemnor by virtue of the provisions of Article 129 read with Article 142(2) of the Constitution. Since, no such law has been enacted by Parliament, the nature of punishment prescribed under the Contempt of court Act,1971 may act as a guide for the Supreme Court but the extent of punishments prescribed under that Act can apply to the High Courts, because the 1971 Act ipso facto does not deal with the Contempt jurisdiction of the Supreme Court"

Zahira was sentenced to undergo simple imprisonment for one year and to pay cost of Rs.50000 contrary to the provisions of the Contempt Act.

In comparatively recent decision Rajeshwar Singh v. Subrata Roy Sahara AIR 2014 SC 476 the Supreme Court once again held that the jurisdiction of the Supreme Court under Article 129 of the Constitution is independent of the Contempt of Courts Act and the powers conferred under Article 129 of the Constitution cannot be denuded, restricted or limited by the Contempt of Courts Act, 1971. The court referred to its previous decision in Delhi Judicial Service Association's case and approved the observations made therein. This judgment is per incurium since the Supreme Court has not taken note of the subsequent decision in Pallav Sheth's case which has clearly answered this issue. In fact in Delhi Judicial Service Association's case the Supreme Court did conclude that the Parliament is competent to enact a law relating to the powers of Supreme Court with regard to 'contempt of itself' such a law may prescribe procedure to be followed and it may also prescribe the maximum punishment which could be awarded and it may provide for appeal and for other matters.

In a recent decision of the Supreme Court in Re Vijay Kurle decided on 27^th April, 2020 in Suo-Motu Contempt petition (Criminal) No. 2 of 2019 it has been reiterated that "Parliament has not enacted any law dealing with the powers of the Supreme Court with regard to investigation and punishment for contempt of itself… Section 15 is not substantive provision conferring contempt jurisdiction and therefore is only a procedural section especially in so far as Suo-Motu contempts are concerned."

In Para 30 of the aforesaid decision, a three judges bench decision of the Supreme Court in Pallav Sheth Versus Custodian was perfunctorily dealt with and bypassed by stating:

"this court in that case was only dealing with the question whether contempt can be initiated after the limitation prescribed in the Contempt of Courts Act has expired and the observation made therein have to be read in that context only.…. It, however, went on to hold that providing the question of punishment or a period of limitation would not mean that the powers of the court under Article 129 have been stultified or abrogated. We are not going into the correctness or otherwise of this judgment but it is clear that this judgment only dealt with the issue whether parliament could fix a period of limitation to initiate the proceedings under the Act. Without commenting one way or the other on Pallav Sheth's case (Supra)it is clear that the same has not dealt with the power of this court to issue Suo-Motu notice of Contempt."

In Para 31 the Supreme Court said: "In view of the above discussion we are clearly of the view that the powers of the Supreme Court to initiate contempt are not in any manner limited by the provision of the Act."

Again the Supreme Court in Re Prashant Bhusan Cased (Suo- Motu Contempt Petition (Criminal) 1 of 2020) quoted extensively many paragraphs from the judgment in Re Vijay Kurle'scase to reject the preliminary objection raised by the advocate for the alleged contemnor regarding non-compliance of procedural safeguards provided in the Contempt of Courts Act, 1971 for initiating contempt proceedings for criminal contempt. In the separate judgment imposing sentence on Prashant Bhusan the issue was again raised that there was no conflict between the constitutional jurisdiction under Articles 129 and 215 on one hand and the Contempt of Courts Act,1971 on other by drawing the attention of the court to the binding precedents in the case of Pallav Sheth Versus Custodian and Meheshwar Peri's decision (2016) 14 SCC 25. However, the Supreme Court in Para 78 brushed aside this argument by saying "We find that this question has been dealt with in the convicting judgment and what is the procedure under Article 129 and 215 of the Constitution has been considered in Re Vijay Kurle's and others (2020) SCC Online 407. We will not repeat then again as they are referred to in the convicting judgment."

Conclusion:

The aforesaid judgment of the Supreme Court has again confused the settled law vide Pallav Sheth Versus Custodian which has conclusively answered all issues regarding the scope and width of Article 129 and Article 215 of the Constitution of India. Judicial discipline required that two judges in Re: Vijay Kurle's case ought to have followed three judges' decision in Pallav Sheth Versus Custodian and ought to have refrained from discussing the larger issue whether parliament had enacted a law of Contempt for the Supreme Court. In fact, Pallav Sheth's judgment Para 30 to 32 make it clear that the provision regarding the maximum punishment under Section 12 and the limitation under Section 20 of the Contempt of Courts Act are applicable in the context of the powers of the Supreme Court under Article 129 and High Courts under Article 215 of the Constitution of India. Since it is a three judges bench judgment it is binding to the bench of a lesser strength. The decision of the Supreme Court in Re Vijay Kurle does not lay down the law correctly. On the same premise T. Sudhakar Prasad's case and Zahira Sheikh's case overlooks the aforementioned legal and constitutional aspects and the Sanyal Committee's Report which deals with the issue specifically and which was the basis for enacting the Contempt of Courts Act, 1971. The decision in Delhi Judicial Service Association's case if read as a whole and properly it also does not say that Parliament cannot prescribe maximum punishment and time limit in contempt cases. In Re: Prashant Bhushan's case the bench consisted of three judges which followed two judges bench judgment in Re: Vijay Kurle's case rather than following three judges bench judgment in Pallav Sheth's case which is also inappropriate.

As stated in the beginning of this article under our constitutional scheme nobody can arrogate to itself unlimited and untrammeled power or jurisdiction. If the Supreme Court or the High Court is trying to assert that it has unlimited jurisdiction in contempt matters and is not bound by the limits prescribed under the Contempt of Courts Act, 1971, such an assumption will infringe the fundamental right under Articles 14, 19 and 21 of the Constitution of India. Such an arbitrary power has no place in our nation governed by the rule of law which is part of the basic structure of the Constitution. Such an assumption frustrates the very objects of the codification of law of contempt. Moreover, the subordinate courts are not invested with the contempt jurisdiction and hence the Contempt of Court Act, 1971 has been enacted for the purposes of regulation of the contempt powers of superior courts only since prior to the codification of the law the contempt power was considered to be unlimited, arbitrary and unregulated. Further, the statement of law recorded by the Supreme Court that no law has been made by Parliament in respect of contempt of the Supreme Court is not palatable. Parliament is not expected to enact a separate law only for contempt of Supreme Court. The 1971 Act is a composite legislation pertaining to high courts and the Supreme Court both. Section 15 and 19 of the 1971 Act specifically mentions the Supreme Court and prescribes the manner of taking cognizance and right to appeal.

Views are personal only.

(Author is a Senior Advocate at Gujarat High Court & Author of "Law of Contempt")